Senate Bill No. 280
(By Senators Green, White and Chafin)
[Introduced February 17, 2009; referred to the Committee on the
Judiciary; then to the Committee on Finance.]
A BILL to repeal §28-5B-1 of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto a new
article, designated §25-7-1, §25-7-2, §25-7-3, §25-7-4,
§25-7-5, §25-7-6, §25-7-7, §25-7-8, §25-7-9, §25-7-10,
§25-7-11, §25-7-12, §25-7-13, §25-7-14, §25-7-15, §25-7-16,
§25-7-17, §25-7-18 and §25-7-19, all relating to enacting the
Correctional Industries Act of 2009; modernizing the
provisions of the Prison-Made Goods Act of 1939; authorizing
the creation of prison industries enhancement programs
provided by Title 18 U. S. C. 1761(c); and updating certain
Be it enacted by the Legislature of West Virginia:
That §28-5B-1 of the Code of West Virginia, 1931, as amended,
be repealed; and that said code be amended by adding thereto a new
article, designated §25-7-1, §25-7-2, §25-7-3, §25-7-4, §25-7-5, §25-7-6, §25-7-7, §25-7-8, §25-7-9, §25-7-10, §25-7-11, §25-7-12,
§25-7-13, §25-7-14, §25-7-15, §25-7-16, §25-7-17, §25-7-18 and
§25-7-19, all to read as follows:
ARTICLE 7. CORRECTIONAL INDUSTRIES ACT OF 2009.
§25-7-1. Intent of article.
Whereas, the means now provided for the employment of inmate
labor are inadequate to furnish a sufficient number of inmates with
employment, it is hereby declared to be the intent of this article:
(a) To further provide more adequate, regular and suitable
employment for the inmates of this state, consistent with proper
(b) To further utilize the labor of inmates for
self-maintenance and for reimbursing this state for expenses
incurred by reason of their crimes and imprisonment;
(c) To effect the requisitioning and disbursement of
prison-made products directly through established state authorities
with no possibility of private profits therefrom, except for those
specific articles or products manufactured and sold pursuant to the
requirements of Title 18 U.S.C. 1761(c), the Prison Industries
Enhancement (PIE) Certification Program and pursuant to sections
eighteen and nineteen of this article.
(d) To provide for Correctional Industries to be a profitable
entity since it is a self-sufficient authority.
§25-7-2. Citation of article.
This article may be cited as the "Correctional Industries Act
§25-7-3. Establishment of industries at correctional facilities;
purposes and extent.
The State Commissioner of Corrections or his or her designee
has exclusive authority to execute any contracts that are necessary
to effectuate the provisions of this article, and is further
authorized to purchase equipment, raw materials and supplies and to
engage the supervisory personnel necessary to establish and
maintain for this state at any correctional facility or institution
now or hereafter under control of the commissioner, industries for
the utilization of services of inmates in the manufacture or
production of such articles or products as may be needed for the
construction, operation, maintenance or use of any office,
department, institution or agency supported, in whole or in part,
by this state and the political subdivisions thereof: Provided,
That the provisions of article three, chapter five-a of this code,
relating to the Division of Purchasing of the Department of Finance
and Administration shall not apply to any contracts or purchasing
of equipment, raw materials and supplies as set forth in the West
Virginia Purchasing Division's Procedures Handbook.
§25-7-4. Prison industry service contracts.
The Commissioner of the Division of Corrections may enter into
contracts with private sector entities that would allow for inmate labor to be provided for prison industry service work and work that
involves exportation of products. The use of such inmate labor may
not result in the displacement of employed workers within the local
region in which work is being performed. Service work is defined
as any work such as repairs, replacement of original manufactured
items, packaging, sorting, recycling, labeling or similar work that
is not original equipment manufacturing. The division may
negotiate the wage to be paid for inmate labor provided under
prison industry service work contracts, and such wages may be less
than the prevailing wage for work of a similar nature in the
The Division of Corrections, in conjunction with the
Department of Commerce, shall develop and maintain a marketing plan
to attract private sector businesses for the employment of inmates
through the prison industries program. The marketing plan shall
include, but not be limited to, provisions of public advertising to
establish a prison based industry and a certification by the
Department of Commerce that each new contract does not create an
unfair competitive wage disadvantage to the local economy. The
negotiation of new contracts and the renewal of existing contracts
with private sector entities shall be consummated in accordance
with procedures established jointly by the Department of Commerce
and the Division of Corrections. The procedures shall be drafted
to ensure fairness and consistency in establishing contracts with private sector entities seeking to establish or continue prison
based operations whenever the wage to be paid is less than the
federally established minimum wage. The provisions of this section
shall not be construed to apply to traditional prison industries as
authorized in section three of this article and formerly authorized
by article five-b, chapter twenty eight of this code.
§25-7-5. Purchase of inmate-made goods by state agencies and
(a) On and after the effective date of this article as amended
in the regular session of the Legislature in the year 2009, all
offices, departments, institutions and agencies of this state which
are supported, in whole or in part, by state funds shall purchase,
and all government offices, departments, institutions, agencies and
political subdivisions of any state may purchase, from the State
Commissioner of Corrections all of the articles or products that
they require from the Commissioner of the Division of Corrections
if those articles or products are produced or manufactured by
correctional industries, as provided by this article. No state
office, department, institution, or agency, within the State of
West Virginia may purchase any article or product that is produced
by correctional industries from any other source, unless
specifically excepted from the provisions of this section, as
hereinafter provided by this article or otherwise by law.
(b) All purchases of correctional industries articles or products by state offices, departments, institutions, agencies and
political subdivisions shall be made upon requisition by the proper
authority of the office, department, institution, agency or
political subdivision requiring such articles or products.
(c) Not-for-profit corporations or charitable agencies
chartered in West Virginia or other states may purchase such goods
and services. Units of the federal government and units of
government in other states may also purchase such goods and
services. All entities which contract with the state, its
political units, its agencies, its public institutions,
not-for-profit corporations or charitable agencies chartered in
West Virginia may purchase goods or services from correctional
industries which are used in the performance of the contracts.
§25-7-6. Exceptions as to mandatory purchase requirement.
Exceptions from the mandatory purchase provisions of section
five of this article may be made in any case where, in the majority
opinion of the Commissioner of Corrections, the Secretary of the
Department of Administration and the Secretary of Military Affairs
and Public Safety, or their designees, who are hereby constituted
a board for purposes of this section, the article or articles or
product or products produced or manufactured by correctional
industries does or do not meet the reasonable requirements of the
requesting state office, department, institution, agency or
political subdivision or where the requisition cannot be filled because of insufficient supply or other reason. No state office,
department, institution or agency, may evade the intent and meaning
of this section by requesting unreasonable deadlines or slight
variations from standards adopted by the Commissioner of
Corrections, when the articles or products produced or manufactured
by the commissioner, in accordance with the commissioner's
standards, are reasonably adapted to the actual needs of the
office, department, institution, or agency.
§25-7-7. Auditor bound by voucher or warrant; intentional
violation of article; penalty.
No voucher, certificate, or warrant issued on the State
Auditor by any state office, department, institution, or agency may
be questioned by the Auditor or by the State Treasurer on the
grounds that the office, department, institution or agency has
failed to comply with the provisions of this article, but if a
state office, department, institution, or agency continues to
intentionally violate the provisions of this article, after notice
from the Governor to desist, such action constitutes malfeasance in
office and the person or persons responsible for the violation are
subject to fine which will be deposited into the Correctional
Industries Account. This fine will be equal to the cost of the
purchase plus $100.
§25-7-8. Catalogues and a web site of articles and products made
The Commissioner of Corrections shall: (1) Cause to be
prepared or updated, or both, at times he or she determines,
catalogues and a web site containing a description of all articles
and products manufactured or produced by the commissioner pursuant
to the provisions of this article; (2) make copies and addresses
available of this catalogue and web site address to all offices,
departments, institutions and agencies of this state; and (3) make
the same accessible to all political subdivisions of this state.
Correctional Industries shall keep and maintain a web site that
lists all of its products, services and pricing.
§25-7-9. Order of distribution of articles and products.
The articles or products manufactured or produced by
correctional industries in accordance with the provisions of this
article shall be devoted, first, to fulfilling the requirements of
the offices, departments, institutions and agencies of this state
which are supported, in whole or in part, by this state, and
secondly, to supply the political subdivisions of this state.
§25-7-10. Director of correctional industries to determine prices.
The director of correctional industries shall determine the
prices at which all articles or products manufactured or produced
by correctional industries are furnished, which prices shall be
uniform and nondiscriminating to all, and shall be as near the
usual market price for those articles or products as is
§25-7-11. Annual statements by the director of correctional
The director of correctional industries shall annually produce
detailed financial reports in accordance with generally accepted
accounting principles at the close of each fiscal year on the
financial position of the correctional industry operation. The
director of correctional industries shall verify the reports within
sixty days after the end of the last preceding year.
§25-7-12. Commissioner of Corrections empowered to implement
The Commissioner of the Division of Corrections has those
powers that are necessary to implement the provisions of this
article to provide for the administration and procedure necessary
for the implementation. To this end, the commissioner is
authorized to cause to be purchased raw materials, supplies,
services and equipment necessary for the production and timely
delivery of articles and products produced by correctional
industries. The commissioner shall develop policies and procedures
to ensure that purchases made for the benefit of correctional
industries programs are, to the extent practicable, at the lowest
possible price while at the same time ensuring quality of material
and timely delivery thereof.
§25-7-13. Self-liquidating contracts; indebtedness for capital
In order to carry out the provisions of this article the
Commissioner of the Division of Corrections is empowered to enter
into contracts and agreements with any person or persons upon a
self-liquidating basis respecting the acquisition and purchase of
any such equipment, tools, supplies and materials, to the end that
the same may be paid for over a period not exceeding five years.
§25-7-14. Correctional industries account.
(a) All moneys collected by the Commissioner of the Division
of Corrections from the sale or disposition of articles and
products manufactured or produced by inmate labor in accordance
with the provisions of this article shall be immediately deposited
with the State Treasurer to be kept and maintained in a special
revolving account designated the "Correctional Industries Account".
(b) Except as provided in subsection (c) of this section,
moneys collected and deposited may only be used for the purchase of
manufacturing supplies, equipment, machinery and materials used to
carry out the purposes of this article, as well as for the payment
of the necessary personnel in charge thereof and to otherwise
defray the necessary expenses incident thereto, all of which are
under the direction and subject to the approval of the
(c) Moneys in the account may also be used to pay wages due
inmates for services provided under a contract between a state
spending unit, political subdivision or other governmental entity and the Division of Corrections, pending receipt of the amounts
owed for the services under the contract. The account shall be
reimbursed within twenty-four hours of receipt of the amounts due
under the contract from the state spending unit, political
subdivision or other governmental entity.
(d) The "Correctional Industries Account" may never be
maintained in excess of the amount necessary to efficiently and
properly carry out the intentions of this article and in no event
may the "Correctional Industries Account" be maintained in excess
of the sum of $1,500,000. When, in the opinion of the Governor and
the Secretary of the Department of Military Affairs and Public
Safety, the "Correctional Industries Account" has reached a sum in
excess of the requirements of this article, fifty percent of the
excess shall be transferred by the Commissioner of the Division of
Corrections at the end of each fiscal year, into the Corrections
Academy Account established pursuant to subdivision (e) of this
section. The commissioner shall transfer the remaining fifty
percent of the excess into the Additional Operations Account
established pursuant to subdivision (f) of this section.
(e) There is created in the State Treasury a special revenue
account known as the "Corrections Academy Account." The
commissioner is authorized to use funds from the account for the
construction of a new correctional academy for the Division of
(f) There is created in the State Treasury a special revenue
account known as the "Additional Operations Account." The
commissioner is authorized to use funds from the account to offset
operational costs, for building maintenance or purchase and for
equipment repair or replacement for the Division of Corrections,
and to defray necessary expenses incident to those activities.
§25-7-15. Sale of prison-made goods on open market prohibited;
(a) Subject to the provisions of subsections (b) and (c) of
this section and to subsection (c) of section five of this article,
it is unlawful to sell or offer for sale on the open market any
articles or products manufactured or produced, wholly or in part,
by inmates of this state, or any other state, except inmates or
prisoners on parole or probation. This provision does not apply to
articles or products manufactured and sold pursuant to the
requirements of Title 18 U.S.C. 1761(c), the Prison Industry
Enhancement (PIE) Certification Program and pursuant to sections
eighteen and nineteen of this article, nor does it apply to the
sale of products made with waste tires: Provided, That any use of
waste tires shall comply with applicable laws and rules of the
Division of Environmental Protection: Provided, however, That any
products made by inmates from waste tires and sold on the open
market must be competitively priced with privately produced goods
of the same nature and may not be sold at a loss: Provided further, That any profits earned from the sale of products made by
inmates from waste tires shall be distributed as follows: (1) To
the correctional industries fund to reimburse all moneys expended
in the collection of waste tires and the production of waste tire
products, including a reasonable amount to be set aside for the
periodic replacement of outdated, obsolete or inoperable machinery
or equipment used in collection or production; and (2) any moneys
remaining shall be divided equally between the Correctional
Industries Fund and the Crime Victims Compensation Fund established
by the provisions of section two, article two-a, chapter fourteen
of this code.
(b) Any person violating the provisions of this section is
guilty of a misdemeanor and, upon conviction, shall be punished by
a fine of not less than $200 nor more than $5,000, or by
imprisonment in jail not less than three months nor more than one
year, or by both fine and imprisonment. Each sale or offer for
sale shall constitute a separate offense under this section.
(c) Notwithstanding the provisions of subsection (a) of this
section, any articles or products manufactured or produced, wholly
or in part, by inmates of West Virginia correctional facilities
which are designed and intended to be used solely by blind and
handicapped persons, including, but not limited to, braille books
and reading materials, may be sold or offered for sale or
distributed on the open market by the Division of Corrections or other state department or agency.
(d) Notwithstanding the provisions of subsection (a) of this
section, arts and crafts produced by inmates may be sold to the
general public by the Division of Corrections or by other agencies
or departments of state government the Commissioner of Corrections
may designate. The arts and crafts may be sold only on a
consignment basis so that inmates whose arts and crafts products
are sold shall receive payment for the products. The payments
shall be deposited in the accounts or funds and managed in a manner
as provided by section six, article five of this chapter:
Provided, That where the Division of Corrections or any other
agency or department of state government provides any materials
used in the production of an arts and crafts product, the fair
market value of the materials may be deducted from the account of
the individual inmate after the sale of the product.
(e) For purposes of this section, "arts and crafts" means
articles produced individually by artistic or craft skill such as,
but not limited to, painting, sculpture, pottery and jewelry.
(f) Notwithstanding the provisions of subsection (a) of this
section, paper for use in copiers, fax machines, for printing or
duplication purposes and boxes for shipping and storage may be
procured to the extent practicable at the lowest possible price
while at the same time insuring quality material and timely
delivery thereof, for resale to offices, departments, institutions or agencies supported, in whole or in part, by this state and
political subdivisions thereof.
§25-7-16. Provisions of act severable.
If any section, subsection, provision or sentence of this act
or the application thereof to any person, or any circumstance, is
held invalid, the remainder of the act and the application of any
such section, subsection, provision or sentence to other persons or
circumstances is not affected thereby.
§25-7-17. Inconsistent acts repealed.
All acts and parts of acts inconsistent with this article are
hereby repealed; however, this article is to be considered as
supplementary, or in addition to other provisions of law now
existing relative to the employment of inmates.
§25-7-18. Programs for employment of offenders by private persons;
establishment; lease of land and improvements.
(a) The Commissioner of Corrections or the Director of
Juvenile Services, or both may establish programs for the
employment of offenders by private person, corporation,
partnership, limited liability corporation or other business entity
for the manufacture of certain goods as part of a program
authorized pursuant to Title 18 U.S.C. 1761(c), the Prison Industry
Enhancement (PIE) Certification Program. In establishing these
programs, the Commissioner of Corrections or the Director of
Juvenile Services or both may enter into agreements with any private person, corporation, partnership, limited liability
corporation or other business entity under which that entity
establishes, by construction, lease or otherwise, facilities within
the exterior boundary of any state adult correctional facility or
at such suitable location as may be agreed upon, for the
manufacture and processing of goods or any other business,
commercial or agricultural enterprise.
(b) In administering this chapter, the Commissioner of
Corrections or the Director of Juvenile Services or both may, as
part of or in connection with any agreement made under subsection
(a), lease, for not more than twenty years, with options of
renewal, land, with the improvements on it, located on the grounds
of any state correctional facility for use by the private party to
that agreement for providing inmate work under this chapter.
§25-7-19. Agreement between commissioner and private person for
manufacturing pursuant to Prison Industries
Enhancement Program; wages; inmate participation on
voluntary basis; workers compensation and
(a) Any agreement entered into between the Commissioner of
Corrections or the Director of Juvenile Services or both the
commissioner and the director and a private person, corporation,
partnership, limited liability corporation or other business entity
to establish a program for inmates to manufacture goods pursuant to a prison industries enhancement program shall provide the
(1) That an offender participating be paid at least the
prevailing wage for the type of work as established by the
Department of Workforce Development, including applicable wage
increases for overtime work.
(2) That an offender's work or participation within a prison
industries enhancement program shall be only on a voluntary basis
and only after the offender has been informed of the conditions of
the offender's participation.
(3) That an offender participating in a prison industries
enhancement program shall be permitted at the discretion of the
Commissioner of Corrections or the Director of Juvenile Services or
both, the commissioner's designee or the director's designee, or
both and any inmate may be removed from or disallowed participation
in such program at any time for any or no reason.
(4) That the agreement will not result in the displacement of
workers employed before the program implementation.
(5) That the private person, corporation, partnership, limited
liability corporation or other business entity provide for worker's
compensation insurance or the equivalent coverage to all offenders
participating in such program.
(6) That the provisions of this section shall not be
applicable to service agreements provided in section four of this article or to operations making goods authorized by section three
of this article that are restricted from sale in the open market.
(b) A commercial or agricultural enterprise established under
this chapter is a private enterprise subject to federal and state
laws governing the operation of similar enterprises.
(c) The earnings of an offender participating in a prison
industries enhancement manufacturing program under this chapter
shall be surrendered to the Division of Corrections or the Division
of Juvenile Services, or both, respectively. This amount shall be
distributed in the following order:
(1) In the case of offenders in the custody of the
Commissioner of the Division of Corrections, said earnings shall be
paid to the offender. All state, federal and local taxes shall be
withheld together with all other deductions required and authorized
by this chapter including expenses for room and board. Provided
that in addition thereto, the Commissioner of the Division of
Corrections shall, pursuant to his or her policy making authority,
issue rules to provide for the deduction of inmate wages in an
amount no less that five percent and no greater than twenty percent
to be paid to the violent crime victims compensation fund
established by section one, article two-a, chapter fourteen of this
code. Total deductions of inmate earnings shall not exceed eighty
percent of the inmate's gross wages.
(2) In the case of a juvenile committed to the custody of the Director of the Division of Juvenile Services the following shall
(A) Not less than twenty percent of the offender's gross
earnings to be given to the offender or retained by the Director of
the Division of Juvenile Services. If retained by the director,
the amount, with accrued interest, if interest on the amount is
earned, shall be returned to the offender not later than at the
time of the offender's release on parole or discharge.
(B) State and federal income taxes and Social Security
(C) The expenses of room and board, as fixed by the director
and the budget agency, in facilities operated by the director, or,
if the offender is housed in a facility not operated by the
director, the amount paid by the Division of Juvenile Services to
the operator of the facility or other appropriate authority for
room and board and other incidentals as established by agreement
between the Division of Juvenile Services and the appropriate
(D) The support of the offender's dependents, when directed by
the offender or ordered by the court to pay this support. If the
offender's dependents are receiving welfare assistance, the
appropriate local office of the division of family resources or
welfare department in another state shall be notified of these
(E) Ten percent of the offender's gross earnings, to be
deposited in the violent Crime Victims Compensation Fund
established by section one, article two-a, chapter fourteen of this
(F) Any remaining amount shall be given to the offender or
retained by the director in accord with subsection (3)(b)(i).
(G) The director may, when special circumstances warrant or
for just cause, waive the collection of room and board charges by
or on behalf of a facility operated by the Division of Juvenile
Services or, if the offender is housed in a facility not operated
by the Division of Juvenile Services, authorize payment of room and
board charges from other available funds.
NOTE: The purpose of this bill is to enact the "Correctional
Industries Act of 2009" by modernizing the provisions of the
Prison-made Goods Act of 1939. The bill also authorizes the
creation of the Prison Industries Enhancement Programs provided by
Title 18 U.S.C. 1761(c).
This article is new; therefore, strike-throughs and
underscoring have been omitted.
This bill was recommended for introduction and passage during
the 2009 Regular Session of the Legislature by the Legislative
Oversight Committee on Regional Jail and Correctional Facility